E2 Law Blog : Environmental Lawyers & Attorneys : Greenberg Traurig Law Firm : Climate Change, Energy Legislation

From Lisa Halko, GT Sacramento.

On April 14, 2010, the California Supreme Court denied a petition to review the Fourth Appellate District’s decision in American Meat Institute v Leeman holding the Federal Meat Inspection Act (FMIA) preempts California’s Proposition 65.  This decision will provide much needed regulatory certainty, and possibly curtail Proposition 65 abuses.

The AMI case arose because a well-known Prop 65 plaintiff, Whitney Leeman, had given notice of her intent to sue meat packagers for failure to warn consumers that meat supposedly contains harmful amounts of carcinogens and/or reproductive toxins.   Leeman claimed that packaged meat contains dioxins and PCB’s, which are listed Proposition 65 substances, and should bear labels stating: “WARNING: This product contains chemicals known to the State of California to cause cancer” or “WARNING: This product contains chemicals known to the State of California to cause birth defects or other reproductive harm.”  

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The U.S. Supreme Court has rejected a cert petition in the environmental citizen suit case of Pollack v. United States, 577 F.3d 736 (7th Cir. 2009).  The U.S. Seventh Circuit Court of Appeal held the plaintiff lacked standing to sue for remediation of a government gun range because he failed to demonstrate actual harm due to alleged contamination.  

Environmental advocacy groups historically have used citizen suits in lieu of legislation to advance policy goals. In many cases, these policy suits are based on very broad and non-specific allegations of harm, or even mere fears of potential harm. Pollack, however, holds that “Without some support for the assertion that he will be affected by the drift of polluted sediment or water, [plaintiff] has not shown that he has standing to pursue this lawsuit.”   

In many citizen suit cases, proof of standing is tantamount to a victory on the merits.  Pollack is significant because it places genuine scientific limits standing and, by extension, environmental citizen suits generally.  However, as the concurring opinion points out, “the Supreme Court's case law on this subject is both unclear in purpose and extraordinarily difficult to reconcile."  Consequently, Pollack's long term fate is unclear.  For now, at least, Pollack provides GHG emitters with a defense against the environmental groups' promised citizen suit litigation assault.

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As we noted here, law suits by environmental groups, often asserting claims based on the National Environmental Policy Act (NEPA), are a major barrier to clean energy generation and transmission.  Thus, the U.S. Supreme Court's grant of certiori in the case of Monsanto v. Geertson, notwithstanding the Obama Administration's objection, may prove to be good news for utilities and for clean energy generation and transmission companies. In Geertson, the Court is considering whether NEPA claims are exempt from the general rule that a likelihood of irreparable harm must be shown to obtain an injunction, whether a district court may enjoin a NEPA violation without conducting an evidentiary hearing, and whether the lower court erred by affirming an injunction based on an arguably remote possibility of harm. 

Historically, the rule has been a NEPA violation, even without evidence of substantive environmental harm, generally triggers an injunction blocking project development.  In Winter v. Natural Resources Defense Council, 129 S. Ct. 365 (2008), the Court began to limit this rule, holding plaintiffs seeking injunctive relief under NEPA must in fact demonstrate that they are likely to suffer irreparable harm in the absence of the requested injunction, just as they would be required to do in any other case in which an injunctive remedy is requested.  Should the Court extend Winter and rule for Monsanto on any of the three issues presented, then special treatment for NEPA cases will cease and environmentalists' and others' ability to employ NEPA for blocking projects may be functionally terminated.  Clean energy companies and consumers stand to benefit a great deal from such a ruling.  

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Do "environmental groups" aim to kill green energy?  A distressing pattern of litigious conduct suggests at least some "greens" oppose any energy project supporting the supposedly "unsustainable" Western lifestyle.   So, they sue.

Thanks to Robert Lamkin for the following post.

Judge Roger W. Titus of the U.S. District Court of Maryland has “reluctantly” enjoined construction of a West Virginia wind farm under the Endangered Species Act (ESA) to protect the Indiana bat. In Animal Welfare Institute v. Beech Ridge Energy LLC, Judge Titus ordered construction cease and operations suspended except when the bat hibernates. 

It is not clear whether this decision - the first from a federal court holding a wind power project violates ESA - means the Indiana bat is the green energy northern spotted owl, but it very well might.  The Judge assumed the developers could have obtained the FWS permit, but, as anyone with FWS experience can tell you, this is quite an assumption. The Indiana bat's habitat spans approximately twenty states in the mid-western and eastern U.S.   Thus, the Beech Ridge decision means wind power projects in a huge part of the US now may need to factor FWS permits into development financing and cost estimates, creating yet another barrier to green energy deployment.

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The key lesson of the recent summary judgment in Appleton Papers Inc. v. George A. Whiting Paper Co., No. 2:08-cv-16-WCG (E.D. Wis. Dec. 16, 2009), the $1 billion Fox River CERCLA contribution litigation, is that it takes really good lawyers to make "guilty" mean "guilty" under CERCLA.

Appleton involved a CERCLA contribution claim by carbonless copy paper makers against paper recyclers for a PCB cleanup of the Fox River in Wisconsin. The manufacturers knew recycling the production scrap and the carbonless copy paper carried risks, but sold it to the recyclers regardless knowing PCBs would end up in the river.  The court decided, on the recyclers’ motion for summary judgment, that the manufacturers were therefore too guilty for contribution.  The transcript of the hearing is very interesting reading.

The Appleton result, as anyone who has ever litigated a CERCLA contribution case can tell you, is tremendous and rare and a credit to David Mandelbaum and his team because allocation cases typically turn on volume and toxicity and not culpability.  Equally unusual is the relative speed with which Mandelbaum obtained the judgment. The recyclers were not all named until November 2008 but the culpability issue was ready for trial just 14 months later.

David and the other GT lawyers on the case will discuss the decision's practical implications and explore whether creative case management can make mega-cases tractable (for CLE credit, no less) in our Philadelphia office on February 4 from 8:00 to 10:15 a.m.  Contact Thelma Cranmer at 215-988-7800 or cranmert@gtlaw.com (put "Feb.4 CERCLA" in the subject line) for more information.

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The Southeastern Legal Foundation has filed a Petition for Reconsideration of the EPA's endangerment determination due to Climategate.  Although EPA likely will reject the Petition, it makes for interesting reading and provides a good foundation for future litigation.

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